Staying Legal: Copyright MATTERS!

One of the key features of our quality control system is the establishment of an audit trail for all material used in your programme coupled to a policy of either clearing copyright on all existing or pre-recorded material or not using it at all. We maintain this policy for both our protection and yours, and have done since 1986 when our Managing Director started his first production company.

We're astonished to learn however than that many, masquerading as professional web designers, video producers and graphic designers seem unaware of this standard professional practice! And we make no apology for indulging in what might be seen as a 'bit of a rant' on the subject. We do so with our client's interests at heart!

Did you know that including the song "Happy Birthday" in a programme could cost £5000 in copyright fees? Even if it's just sung by some kids in a party scene! Or that copying a picture from a website could land you with a £30,000 clearance bill? Copyright is a serious issue that concerns anyone who uses any kind of intellectual property such as text, graphics, pictures, music or video. We are both alarmed and amazed by the myth and ignorance that surrounds the use of copyright material both in video programmes and on websites.

In recent years certain corporate copyright holders have become very proactive in seeking out and pursuing those who have breached their rights.This situation will only become more common as copyright holders seek to replace revenue streams lost through the demise of traditional distribution channels. And new technology has made the detection of copyright theft far easier than anyone would have dreamed possible a few years ago

Of particular concern is the fact that many supposedly professional operators apparently either don't know or care how to clear copyright properly. We're also very concerned by much of the nonsense and dis-information written about copyright. We're aware of various online debates raging away on the 'net, some on discussion boards run under the banner of otherwise credible business organisations,

We're amazed, and slightly disgusted to find that many of these debates seem to exist in defence of those who have operated illegally. In almost all cases these discussions center around a group of people who have been caught out' by rights owners and are attempting to convince themselves that somehow a 'different' law applies to them.

Worse still, is the notion that some contrived and twisted interpretation of the law can get people off the hook.The term "Barrack Room Lawyer" is often used to described a person who gives opinions on legal matters they are not qualified to speak about. Perhaps that definition could also be extended to the term 'chat room lawyer'. We find it interesting that many of those 'holding court' on these discussions boards are (often by their own admission) , untrained and unqualified in their particular discipline. Which, presumably, is how they got into trouble in the first place!

Of course there's nothing inherently wrong with self-education, providing it's complete! The problem with the creative industries is that many people see and learn only the 'fun' part. That's fine for amateurs, but professional practice means professional responsibilities. The real scandal is that it may well not be them, but their clients who ultimately take the fall for their incompetence!

Here are some key FACTS about copyright as it affects your business...

You must appreciate that CANNOT lawfully use ANY, graphic, photograph, video clip or music without identifying the rights owner and seeking permission from them, often paying (a possibly substantial) copyright clearance fee in the process. This is also true of material that is apparently in the 'public domain' or supposedly 'copyright free'. Often material so labelled actually isn't! You must check, establish the facts in writing and keep a clear, detailed, legally admissible audit trail for all material.

The size of the piece of intellectual property doesn't matter nor does the size of your business. And this applies just as much to private, charitable, church, educational or religious websites or programmes as it does those of major profit-making organisations.

The notion of certain material being 'Copyright Free' is a false one; copyright exists in every piece of intellectual property as soon as it is recorded in tangible form; humming a tune into a dictation machine or scribbling a logo down on a napkin is enough to establish copyright -providing it's an original work of course!

The idea that you cannot be prosecuted for copyright infringement if you didn't know the item was subject to copyright is a much understood one. CONTRARY TO THE DANGEROUS NONSENSE that has been published on certain business forums by certain barrack-room lawyers, section 97 of the 1988 Copyright act DOES NOT provide you with a defence simply because the item was not marked as copyright, you couldn't find the copyright holder, or 'someone' told you it would be OK to use the item! An in-copyright item DOES NOT have to be marked as such. And even with items where the original work is out of copyright such as very old photographs or gramaphone records, there may well still be copyright issues with modern copies such as those that can be downloaded from a website or exist on modern media.

The much quoted and abused Section 97. of the Copyright, Designs and Patents Act 1988 is primarily concerned with what are known as 'orphaned works'. And exists to provide a defence against a rights owner action seeking DAMAGES against someone who had used a previously orphaned work in good faith, and where the rights owner had later emerged. Even though in this very peculiar set of circumstances the rights owner can't claim DAMAGES they remain fully entitled to claim a licence fee in respect of the material. We'll refer you to an EXPERT on this one! Charles Swan of Swann-Turton , one of the UK's most respected IPR law firms! ORPHAN WORKS AND CREATIVE COMMONS: COPYRIGHT UNDER THREAT?

To quote the well known authority on IP rights, Charles Swann, a section 97 defence is:

.........."an exception so minor that I've never come across it in practice."

Copyright belongs to the individual or company who CREATED the original work; not necessarily the individual who commissioned it! It's entrely possible you don't own the copyright to your own company logo or product photographs!

Ultimately it is the proprietor of any website, corporate video or composite work who is responsible for ensuring that all intellectal property rights have been satisfied. It's your responsibility, when you purchase any kind of creative service to ensure that the person doing the work for you actually understands how to manage these rights and operates to protect your interests.

Ignorance of the law is not a defence nor is ignorance of the fact that intellectual property is property and belongs to someone. Taking someone else's property without their permission is, quite simply, theft.

Legal advice on intellectual property matters can only sensibly be obtained from a specialist I.P. lawyer. It's an area of law which is beyond the experience of most high street solicitors.

IF you are the recipient of a claim against you by a rights holder (such as Getty or Corbis) WE ADVISE in the strongest possible terms that you contact an appropriate professional for advice.

TFGtv.com specifically recommend contacting Charles Swann at http://www.swanturton.com/

In September 2009 Photo Library Getty Images finally took a copyright thief to court AND WON!

JA Coles, a removals firm, admitted copyright theft. Now, as well as having to pay damages and the claimed licensing fee to Getty, JA Coles will have to meet all Getty's legal costs. We estimate these to be in the region of £15,000 to £20,000.

Despite JA Coles admitted guilt and the existence of a High Court order, there are STILL certain very foolish people who would still like to imagine this somehow sets no precedent. And actually isn't any kind of breakthrough.

The facts are however that JA Coles has now called its own name into disrepute by admitting to a court of law that it engaged in an act of intellectual property theft. That is now a matter of public record. They were uninformed, ignorant and and/or arrogant enough to go to let this matter reach a court and now stand 'convicted' of this act. The gasbags are now wanting to know, "why Coles? ", and the answer is simple. Coles are simply the first of many who have pushed and pushed and pushed Getty to the very limit.

For the benefit of the foolhardy and the avoidance of any doubt no 'court ruling' or precedent was either sought or necessary since nothing in the relevant laws, statutes or procedures was ACTUALLY (and I know some prefer and promote an 'alternative' fantasy view) in dispute or required clarification...

Had JA Coles actually faced the court this would have been an open and shut case! However a COURT ORDER has in fact been issued; and were this a criminal trial one might equate what has happened to a plea change from 'not guilty' to 'guilty' and the subsequent handing down of a less-severe sentence than might have been doled out otherwise had the court's time been wasted hearing a case to which there was no cogent defence.

IGNORE the barrack room advice on the Getty/Corbis debacle and on copyright that has been posted on various internet discussion boards. ESPECIALLY that which has been published by certain individuals who are not only completely untrained and unqualified in legal matters. But are completely untrained and unqualified to do the job they're doing! Many if not all of these people have actually admitted to breaching copyright law. They're in trouble because not only have they done something incompetent, but something unlawful. The fact that these dangerously uninformed posts are allowed to stand on forums associated with otherwise reputable organisations beggars belief and is an utter disgrace.

If you're in trouble with Getty, Corbis or any other rights holder, YOU ARE IN TROUBLE !

SEE A SPECIALIST LAWYER!

If you're commissioning any creative work be sure that you engage only PROPERLY trained professionals with REAL qualifications from nationally recognised institutiions...

This applies equally to Video Producers, Web Designers, Photographers, Sound Recordists, Printers, Graphics Artists. Remember YOU are the one who will face prosecution if THEY don't know what their doing and land you with an IP rights action.

STAY LEGAL! Whether you're commissioning a website, a leaflet a corporate video or simply some business cards remember the onus is upon YOU to make sure that what's created in your name complies with the law on intellectual property rights. Make sure the people you hire are PROPERLY trained, hold LEGITIMATE ACADEMIC QUALIFICATIONS and fully understand and impliment the procedures that are necessary to protect your legal position.

REMEMBER, YOUR BUSINESS DESERVES THE ATTENTION OF EXPERTS,

NOT BLAGGERS!